The most serious kind of subpoena - called a 'National Security Letter' - used to have a lifetime gag-order automatically attached. That is until Nicholas Merrill appealed his and won the right to talk about it. Despite 50,000 national security letters a year there are only three organizations who have ever won the right to say they got one. Nick Merrill explains why he's the exception and the rule.
Tired of Fighting
Artist: The Menahan Street Band
BOB GARFIELD: National Security Letters are, by their nature, secret, like really, really, really secret. That’s why only three people have ever won the right to disclose that they've received one. The first was a San Francisco nonprofit called, fittingly enough, the Internet Archive. The second was a local public library. And the third was a fellow named Nicholas Merrill, the founder of a small Internet service provider in New York City. Actually, Merrill was the first to bring a case, but the last to win. He was forced into silence for more than six years, and only in August was he legally allowed to do interviews like this one. Nick, welcome to the show.
NICHOLAS MERRILL: Thank you, thank you very much.
BOB GARFIELD: So paint me a picture here. I mean, is this like a Candygram -
NICHOLAS MERRILL: [LAUGHS]
BOB GARFIELD: - or like a Law and Order episode deal where someone says your name in a locker room or something and you turn around and he throws you an envelope and says, “You've been served?”
NICHOLAS MERRILL: It was a little more formal than that. I was at my office, it was 2004, and I got a telephone call. The caller told me that they were with the FBI and that someone would be coming by my office with a letter for me. I wasn't really sure whether to believe it, but soon enough I found out that it wasn't a joke, when an actual agent did arrive at my office and handed me an envelope. Inside there was a three-page letter. You can actually view it at Aclu.org/nsl. And basically the letter ordered me to produce information about one of the clients of my ISP.
BOB GARFIELD: And what do you do next?
NICHOLAS MERRILL: What I did right at that very moment was simply read the letter. You know, a number of things leapt out at me. The first thing was a completely absolute commandment that I was never to tell anyone that I had received this letter or that I had been asked for information.
BOB GARFIELD: Not even your lawyer?
NICHOLAS MERRILL: The letter said, “Tell no person.” Your reaction just now was very close to my reaction. I looked at the agent and I said, “Not even my lawyer, not even my business partners?” And the agent didn't really give me a clear answer, just kind of shrugged.
BOB GARFIELD: All right, so what happened next?
NICHOLAS MERRILL: The agent left. I tried to make sense of it all. It made some obscure reference to part of the Federal Code, which I looked up, but if you've ever looked at the Federal Code, it’s not so easy for a layman to read. But I know a bit about the law, and one of the first things that I was looking for was a judge’s signature or which court this supposed subpoena had come from, and there was none. So I called my attorney, my feeling being I'm an American and I can always talk to an attorney, and no one can tell me that I can't. He was a bit taken aback. And coincidentally, one of the clients of my Internet service provider was the New York branch of the ACLU. So we got in touch with them.
BOB GARFIELD: [LAUGHS] So not only are you not not telling anybody, now you’re telling everybody. [LAUGHS] You go to the ACLU, with your lawyer, and they advise you what?
NICHOLAS MERRILL: They told me they had never seen one before. And, at that point, I knew that this was really, really serious and I started to wonder what had I gotten myself into.
BOB GARFIELD: Did you comply with the other parts of the order, to turn over the information to the FBI that they were seeking?
NICHOLAS MERRILL: No, no, I never did.
BOB GARFIELD: And the court ruled in your favor, but not entirely. What was the gist of its decision?
NICHOLAS MERRILL: It was the first time anyone had ever challenged any of the powers from the USA Patriot Act. The court ruled two separate times that the National Security Letters provision is unconstitutional and a violation of the First Amendment, the Fourth Amendment and the Fifth Amendment.
BOB GARFIELD: Before we get to the current legal disposition of your National Security Letter, let's talk about the government’s concerns. You know, there is a rational argument for such a legal tool. Let's say one of your Internet clients at the time was a terrorist. Obviously you would not want to tip such a person off that the Feds were on the trail. So, you know, if not a secret subpoena, what is the solution?
NICHOLAS MERRILL: It seems to me that the existing tools, such as normal subpoenas from a judge, are workable. Numerous terrorism plots have been broken up using those types of tools. If we don't have checks and balances, then we're really, I think, going down a dangerous path, and the purpose of having a judge listen to the evidence from law enforcement is to provide a check on their power.
BOB GARFIELD: Okay, so back to your disposition. You ultimately won the right to disclose that you had received this letter but you didn't win the right to disclose [LAUGHING] everything. And, in fact, even as we speak, you are holding in your lap a laptop with a six-page, single-spaced checklist of things you are or are not allowed to say lest you wind up in Leavenworth. How ungagged are you at this point?
NICHOLAS MERRILL: The way I try to explain it to people is that if before I was partially released from the gag, there were 100 things I couldn't talk about, right now there’s probably 97 things that I can't talk about. The main things that I won the right to say are that I was the plaintiff in this case and that I received a National Security Letter.
BOB GARFIELD: Now, the thing about your gag order is that it’s in perpetuity. And you didn't sign up for this. I mean, it’s not like you are a CIA officer understanding full well that some secrets had to be taken to the grave. You’re [LAUGHS] an Internet service provider who made no such bargain. What in the world is it like?
NICHOLAS MERRILL: It has been a challenge, particularly during the six years when I couldn't say anything. I couldn't tell my family, I couldn't tell my fiancée, I, I couldn't tell any of my colleagues. I couldn't speak to my elected representatives about what I felt was abuse of the law. Basically it forced me to sometimes even lie to people. It put a wall between me and my clients where I couldn't be fully honest with them. That, on a professional ethics level, was, was a real problem for me. Now that I can at least say that I was the plaintiff in this case, it is somewhat of a relief, but at the same time it just kind of opens up all kinds of situations where people ask me things that I can't answer, and it, it essentially just is a whole new set of problems. I mean, I've been warned that I should be really careful what I say because anything I say is probably being listened to, particularly public statements. I respect that, even within the privacy of my own home and all my relationships, because it’s a huge risk.
BOB GARFIELD: It turns out that you’re kind of a poster child for a very large group of people, the 50,000 or so each year who are served National Security Letters. Do you feel a burden of responsibility that you’re speaking for this gigantic cohort of the gagged?
NICHOLAS MERRILL: Between 2003 and 2006, around 200,000 of these letters went out. That works out to be nearly one letter per one-thousand Americans. Although you’re allowed to challenge the gag every year now under the new revised law, the last time I did it, the government presented secret evidence that only they and the judge could see, and my attorneys could not see, and therefore could not challenge. It does kind of add up to a lot of responsibility, and that’s part of what motivated me to start my nonprofit organization, the Calyx Institute. Part of it is to defend people who are gagged. Part of it is also to promote best practices among telecommunications companies in regards to the privacy of customer data.
BOB GARFIELD: Nick, thank you so much.
NICHOLAS MERRILL: All right, thank you very much for having me on the show.
BOB GARFIELD: Nicholas Merrill is the founder of the Calyx Internet Access Corporation, and now director of the nonprofit Calyx Institute.
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